Settle, J., delivered the opinion of the the same term of the court, the appellant

statement, or that he entertained prejudice | flicted by the verdict was incompetent, but toward appellant, admitting, however, that he had inquired of a former commonwealth's attorney what punishment could be inflicted for criminal contempt, and was told by the latter that it was unlimited. It also appears from his affidavit that this admission, with the further statement that he had not made up his mind as to the guilt or innocence of appellant, was made by him when taken upon the jury, and that on appellant's trial he unavailingly exerted his influence with other members of the jury to reduce the punishment below that fixed by the verdict.

we do not so regard it. The competency of such evidence was considered by us in Gleason v. Com. 145 Ky. 128, 140 S. W. 63, Ann. Cas. 1913B, 757. In the opinion it is said: "By the affidavits of three persons filed in support of this ground [disqualification of a juror], it was stated that J. M. Morris, a member of the jury by which appellant was tried, expressed before the trial, and before he was accepted as a juror, the opinion that appellant was 'guilty of the murder of George Courtney, and should be punished therefor by being hanged or sent to the penitentiary for life.' Morris gave an affidavit denying that he formed or expressed any opinion as to appellant's guilt or innocence before the trial. In addition, 55ity, since testifying, to return to his home. Re Healey, 53 Vt. 694, 38 Am. Rep. 713.

It is, however, insisted for appellant that to his efforts to reduce the punishment inso much of the juror's affidavit as related upon the day of trial. Hale v. State, Ohio St. 210, 36 L.R.A. 254, 60 Am. St. Rep. 691, 45 N. E. 199.

But, although it is contempt of court for one, knowing that a certain person has been subpoenaed by the state to appear and give testimony before the grand jury in a criminal case, to decoy such person out of the state with the purpose of preventing his appearance as a witness, one who thus decoys a supposed witness is not punishable for contempt, under a statute limiting the power of the courts of the state to punish for contempts of this nature to cases of abuse of, or unlawful interference with, the process of proceedings of the court, where the supposed witness had not, in fact, been lawfully subpoenaed, although he was decoyed out of the state under the belief that a lawful subpoena had been served on him. Scott v. State, 109 Tenn. 390, 71 S. W. 824, 14 Am. Crim. Rep. 292.

Publication accusing of perjury. The publication in a newspaper, after the filing of the bill and affidavits, but before a hearing, in a suit in chancery, of an article attributing falsehood and perjury to the witnesses who made the affidavits, is a con

tempt of court. Felkin v. Herbert, 9 L. T. N. §. 635, 10 Jur. N. S. 62, 12 Week. Rep.

332.

And the publication in a trade gazette, pending the progress of a cause in court, of articles reflecting on the plaintiff's witnesses and representing their affidavits, upon which the plaintiff had obtained an injunction, as containing glaring misrepresentations which the editor believed, and heartily hoped, would lead to an indictment for perjury, is a contempt of court, Littler v. Thomson, 2 Beav. 129.

Service of process.

So, it is a contempt of court to serve civil process, after the termination of a criminal prosecution, on witnesses for the government who were brought by it to the place of trial from another state and were regularly subpoenaed as witnesses in the cause, before they had left, or had reasonable opportunity to leave, the place of trial on their return journey to their homes. United States v. Zavelo, 177 Fed. 536.

And this is misbehavior so near the court as to obstruct the administration of justice, within the meaning of the statute limiting the power of the Federal courts to punish summarily for contempt, notwithstanding the acts were not committed in the court room or its immediate vicinity. Ibid.

But the service upon a nonresident witness in a pending action in a Federal court, of a writ of garnishment from a state court in a suit between other parties, while he is proceeding from the court room to his boarding place at the noon recess, is not "a misbehavior in the presence of the court or

so near thereto as to obstruct the administration of justice," within the meaning of Federal courts in cases of contempt. Ex the statute limiting the jurisdiction of the parte Schulenburg, 25 Fed. 211.

Subornation of perjury.

Procuring a witness for the state in a pending prosecution, by persuasion and threats of personal violence, to testify falsely as to the time of the alleged offense, so statute of limitation, is contempt of court as to make it appear to be barred by the within the meaning of a statute giving the court power to punish, as contempt, an unlawful abuse of or interference with the process or proceedings of the court. Ricketts v. State, 111 Tenn. 380, 77 S. W. 1076, 14 Am. Crim. Rep. 301.

And see also Fisher v. McDaniel, supra, under "Bribery."

It is contempt of court to cause process of summons to be served upon a material witness in a pending suit, who is a nonresident of the state and is in the state solely to attend the trial of the cause and testify But one who, having instigated a neglias a witness, and has not had an opportun-gence action, made and delivered to the wit

If the conduct of the juror in attempting to influence the jury to inflict a lighter punishment than was awarded by the verdict could properly have been shown by the affidavit of other members of the jury, as held by the authorities, supra, it was clearly competent to show it, as was done in this case, by the affidavit of the juror himself. Under the circumstances, it was necessary for the trial court to determine whether the juror alleged to be biased was disqualified to such an extent as to impeach the verdict and give cause for setting it aside. The matter was one that addressed itself to the discretion of the court. Some weight must be given to the court's knowledge of the conduct of the juror during the trial and its acquaintance with the charac

there were filed the affidavits of several mem- did not influence the verdict), here the other bers of the jury, from which it appeared principle (ante, § 2349) applies to forbid that Morris, at no time during the trial, this. The distinction is that in the former manifested any bias or prejudice against case the juror's expressions are not conappellant, but that, on the contrary, he sidered in their aspect in establishing mowas largely instrumental in influencing sev- tives for the verdict, but merely as part eral of the jury, who were in favor of find- of his whole conduct going to determine the ing appellant guilty of murder and punish-question of his former bias.' 11 Am. & Eng. ing him accordingly, to agree to a verdict Enc. Law, 1008." of voluntary manslaughter. We are of opinion that the affidavits of the other jurors were properly admitted as evidence on the charge of bias against Morris. The affidavit or oral testimony of a juror will not be received to impeach a verdict or to impeach a fellow juror's conduct, but will be admitted in support of a verdict attempted to be impeached by other testimony, whether the juror's testimony goes to deny or explain . . misconduct during retirement. We are aware that this doctrine does not meet with favor in some of the states, but we gave it our approval in Howard v. Com. 24 Ky. L. Rep. 612, 69 S. W. 721, and have since adhered to it. In elaboration of this doctrine Mr. Wigmore, in his valuable work on Evidence (vol. 4, § 2354, subsec. 4), says: 'Moreover, this object of disproving biaster of the juror and those of the three peralleged to have existed before trial may be attained by showing expressions and conduct during retirement as an evidential fact relating back and negativing the supposed prior bias. But where the object is to determine the grounds or motives of the verdict as in themselves important for sustaining it (for example, to show that a certain illegal paper or erroneous charge the court on this point against appellant nesses who were to testify for the plaintiff, | typewritten statements of what they were to swear when called at the trial, which statements were false, and were furnished to aid the plaintiff in obtaining a verdict by false and perjured testimony, is not guilty of a civil contempt, under a statute giving courts of record the power to punish as a civil contempt, in certain cases, misconduct by which a right or remedy of a party to a pending civil action may be defeated, impaired, impeded, or prejudiced, where the defendant has succeeded at the trial. Noster v. Metropolitan Street R. Co. 30 Misc. 722, 63 N. Y. Supp. 501.

Miscellaneous.

It is contempt of court for the defendant in a pending civil action to prevent the service of a subpoena upon, and to keep out of the way, a material and necessary witness for the plaintiff, who resides with the defendant as a part of his family and is entirely under his care and control. Clements v. Williams, 2 Scott, 814.

And it is contempt of court to endeavor to warp the minds of possible witnesses in a pending action, by writing letters to persons who, from their knowledge of the mat

sonal friends of appellant by whose affidavits his disqualification for service upon the jury was attempted to be shown; and the fact that the court accepted the statements contained in the juror's affidavit in preference to those contained in the affidavits of the three witnesses of appellant gives us no ground for holding that the ruling of

ters involved, are likely to be called as witnesses in the action, and one of whom has already actually been subpoenaed. Welby v. Still, 66 L. T. N. S. 523.

sum

Where, owing to sickness of one
moned as a witness, and his inability to at-
tend court, his bookkeeper has been sub-
pœnaed to appear and bring with him into
court one of his employer's books, which he
brings, in obedience to the summons, it is
contempt of court for another to take the
book from him, and carry it out of court
and to the employer, although the employee
brought the book into court without con-
sulting his employer, or obtaining the lat-
ter's permission to take it. Com. v. Bray-
nard, Thacher, Crim. Cas. 146.

to write to one who may become a material
But it is not a contempt of court merely
witness for the plaintiff in a pending civil
action, and attempt to persuade him not to
give evidence at the trial, where it is not
shown that such conduct interferes in any
way with the plaintiff's serving the wit-
ness with a subpoena, or that the witness, if
served, will not appear and furnish the evi-
dence desired by the plaintiff. Schlesinger
B. N. S. 97.
v. Flersheim, 2 Dowl. & L. 737, 14 L. J. Q.
A. C. W.

A. Nothing whatever. And said nothing.

was error. In other words, we are uncon-
vinced, by anything appearing in the record,
that the ruling of the court in refusing to
set aside the previous order overruling the
motion for a new trial was an abuse of dis-
cretion, or prejudicial to the rights of ap--he says, "You God damned s
pellant. McKee v. Cincinnati, F. & S. E.
R. Co. 161 Ky. 711, 171 S. W. 425.

Q. Did you or not have an opportunity
to defend yourself before he struck you?
A. No, sir; he struck me just as he said

Appellant's main contention that the acts for which he was convicted did not constitute contempt cannot prevail. To intelligently pass upon this contention, consideration of the evidence will be necessary. It appears that there were three indictments

returned in the Bourbon circuit court against appellant, who was the keeper of a saloon, each charging him with an unlawful sale of liquor. C. P. Cook was an important witness for the commonwealth in each of the three cases referred to. Two of the cases had been tried, one of the trials resulting in appellant's acquittal and the other in his conviction; Cook being the principal witness against him in each of the The third case was continued.

cases.

The following excerpts from the testimony of Cook in the instant case will indicate the acts constituting the alleged contempt:

Q. This rule charges Mr. Brannon with contempt of court for striking you after you had left the court room here. Just tell what those facts were, if he struck you, Mr. Cook, how it came up, and how long after the trial of this case was it?

A. A very few minutes. I walked up street before the jury had brought in a verdict. After I testified I walked up street, and I stopped on the corner of Seventh and Main to talk to Mrs. Sims Wilson. She stopped me and asked me about a certain matter. I have forgotten what it was now -perhaps an order and just as I started to walk on to get on the other side of the street-Seventh street, going up-Mr. Brannon came diagonally across the street. turned and saw him. He was almost to me; and he says, "God damn you, I ought to whip you, and I am going to do it." And with that he struck me on the jaw here, and then he struck me here, and knocked me down and kicked me twice.

Q. Where did he kick you?
A. Kicked me in the back.

I

A. As soon as I got up, he shook his fist in my face, and says, "God damn you, I am going to give you this every time that I meet you."

A. When he first struck me he said, "You
God damned s of a b-, I ought to
whip you, and I'm going to do it."
Q. What did you do?

of a b--, I ought to whip you, and I am going to;" and with that he struck me.

With respect to this transaction, appellant testified as follows:

Q. Now, tell just how you met Mr. Cook there at the corner of Seventh and Main there, and what was done? streets, and what was said between you

of Main street, from the court here. When A. Well, I was going up on the west side I left the courthouse I went up Main street street. My place is on the opposite side of on the west side until I got to Seventh met-I never saw Mr. Cook until I run right the street, and I was crossing over and I into him between Seventh street, between the two corners.

Q. You mean on the north side or the south side of Seventh street?

A. Yes, sir. Right in the middle of the crossing. I said to him: "You dirty little cur, you lied. You know you lied." And he called me another liar, and as he did I hit him. I never hit him but once. I hit him the first time this way, then I hit him with the left hand the second time, and that was all that I done.

Q. Did you knock him down?
A. Yes, sir. He fell on his back.
Q. Did you kick him at all?
A. I did not, sir.

Q. What else did you say to him there at the time? Did you say that you were going to whip him every time you saw

him?

A. I don't think I did.

Appellant also testified, in substance, that he did not threaten Cook with any violence; that he had no purpose of intimidating him from testifying in the remaining case pending against him; and that he intended no contempt of the court.

On cross-examination he was asked:

Q. You say that you didn't strike Mr. Cook for the purpose of intimidating him from giving any further testimony. It is a fact that you did strike him for having testified?

A. No, sir. Never.

Q. What did you strike him for?

A. Just because he told a lie. That's it. Q. Then you did strike him for the purpose of punishing him for having testified against you, if you struck him for having told a lie, didn't you?

A. I thought it was all over and every

thing settled, and I had no idea of doing meetings between them, that the purpose of anything to wrong this court.

Cook's testimony was corroborated in the main by three eyewitnesses of the assault, one of whom heard appellant use the insulting and abusive epithets and language applied to Cook and saw him knock him down and kick him. The others were not close enough to hear what was said, but they saw Cook knocked down and kicked by appellant, and all three witnesses testified that the

assault was unprovoked by anything that Cook did, and that he made no effort to defend himself against the attack.

It should here be remarked that, at the time the assault and battery was committed by appellant upon Cook, there was still pending one of the indictments against the former, under which he had not been tried, and that Cook's name appeared on this indictment as a witness; and it was known to appellant that he would, upon the trial

of the case at the next term, be called on to again testify as a witness in behalf of the commonwealth against him. Appellant's trial under one of the other indictments had, as previously stated, resulted in a verdict in his behalf, but the trial of the case in which he was convicted had, according to

his testimony, been concluded but a few minutes before he committed the assault and battery upon Cook. According to Cook's testimony, the attack upon him occurred very soon after he had left the court house for his place of business, and that, at the time of his leaving the court house, the jury which convicted appellant had not returned a verdict. It is true the case in

which appellant was convicted of unlawfully selling liquor had, at the time of the assault, been tried, but it had not been finally disposed of, for the judgment had not then been entered upon the verdict; and as, under § 273, Criminal Code, appellant had the right to make application for a new trial at any time during the term, which continued for some days thereafter, the case cannot be said to have been finally disposed of until the time allowed by the Code for filing motion and grounds for a new trial expired, which ended with the close of the

term.

So it is apparent that, at the time of the assault upon Cook by appellant, there were two cases pending against him in the Bourbon circuit court-one of which had been disposed of only in part, and the other continued for trial at the succeeding term-in which Cook was an important witness for the commonwealth; and it is manifest from what he said to Cook at the time of assaulting and knocking him down and kicking him, and his threat to repeat it at all future

the attack upon the latter was not only to punish him for previously testifying against appellant in the two cases which had been tried, and one of which had not been finally disposed of, but also to intimidate him with a view of influencing his testimony, or of preventing his giving it, on any future trial that might take place under the indictment which had been continued.

There appears to be no authority in this jurisdiction, other than Melton v. Com. 160 Ky. 642, L.R.A. 1915B, 689, 170 S. W. 37, as to what constitutes the pendency or nonpendency of an action or proceeding, with respect to which a contempt was charged to have been committed; but the question seems to have been decided in other juristhat of State v. Tugwell, 19 Wash. 238, 43 dictions, a leading case on the subject being L.R.A. 717, 52 Pac. 1056. In that case the respondent was accused of publishing a libelous article six days after the reversal of a judgment by the supreme court of the state of Washington, which attacked the court because of the reversal. It appeared, however, that the publication, though occurring after the reversal, was made before the court had acted upon a petition for a modification of the opinion, final judgment upon which was not rendered until March 2, 1898, the remittitur issuing March 9, 1898. In rejecting the respondent's contention in the contempt proceeding, that the case, with respect to which the contempt was charged to have been committed, was not pending on appeal at the time the article was written, the court said:

lowed by a petition for rehearing on the
"The first opinion in the cause was fol-
file additional briefs was granted by the
part of the appellant. Leave to print and
court, and the case assigned regularly, and
reargued orally in the court, and the opin-
ion of the majority of the court then filed,
reversing the judgment of the superior
court. A petition was then filed by counsel
modification of the opinion filed, and subse-
for respondent, praying for an important
quently an opinion filed denying such modi-
fication. There can be no doubt of the

jurisdiction of this court over the cause and
the power to make any modification of its
opinion, until the final judgment was ren-
dered, and until the remittitur issued. Un-
der the law, the courts in this state are
always in session, in legal contemplation.
'An action is "pending"
judgment is fully certified.' Anderson's
Law Dict. verb. Pend. See Ulshafer v. Stew-
art, 71 Pa. 170; Holland v. Fox, 3 El. & Bl.
977; Wegman v. Childs, 41 N. Y. 159."

until the

In the elaborate abstract of brief appended to the case, in [43 L.R.A. 718], will